The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Perhaps one of the most poignant of royal historical pictures is that of HM King George VI at Heathrow Airport bidding farewell to his eldest daughter Princess Elizabeth as she departed in a BOAC Argonaut (Canadair C-4) aircraft for what was planned to be a Commonwealth tour. The BBC Archives show the departure - "King and Queen see royal departure." For the King, who must have known that he was terminally ill, this would have been an immensely sad occasion as it would be for any father knowing that he might never see his daughter again. Only five days later, the King was dead and Princess Elizabeth succeeded to her immense role as Queen. The succession was, in law, immediate since succession to the title is not dependent on proclamation or coronation or other formalities. The Queen then returned home to be met at Heathrow by her first Prime Minister - Sir Winston Churchill - (ITN News Footage Education).

HM The Queen returned to Heathrow - 1952

State events then followed. There was an Accession Council on 8th February 1952. Proclamations were read announcing the Queen's succession. The first such proclamation was read by Garter King of Arms at St. James' Palace and others were then read in many places including, as can be seen on this video, in the City of London and in Edinburgh. (Note in the video how the procession stopped at Temple Bar, London and requested entry to the City. Such are the rights and privilegesheld by the City of London).

The magnificent Coronation at Westminster Abbey was not to take place until 2nd June 1953. Interestingly, a Coronation is not legally necessary as demonstrated by the relatively brief reign of Edward VIII - a mere 325 days.

The 2012 Diamond Jubilee is only the second such event in British history. Queen Victoria celebrated her Diamond Jubilee in 1897 - (some interesting footage is here). Victoria reigned for 63 years 216 days - "List of longest-reigning Monarchs."

The Queen and the law:

The Queen's position in relation to the law is interesting. As Sovereign, she enjoys a personal immunity. A wider immunity attaching to "the Crown" has been largely removed by the Crown Proceedings Act 1947 and the Crown Proceedings (Armed Forces) Act 1987. This legislation is of immense importance constitutionally since it opened up the possibility of the citizen being able to sue "the Crown" - (usually, in practice, some government department).

The "Royal Assent" to a Bill is still required before it becomes an Act of Parliament. Royal Assent is notified to Parliament by Commissioners and is not, by convention, refused. Her Majesty attends the State Opening of Parliament and reads "the Queen's Speech" which is prepared for her by the government and sets out the programme for the next session of Parliament. A debate on the Queen's Speech follows.

An important source of governmental legal power is the Royal Prerogative. See recent Law and Lawyers post and the further links in that post. The prerogative powers are extensive and include the power to declare war, to decide dispositions of the Armed Forces, to enter into treaties, the prerogative of mercy, to award honours etc.

Trials in the Crown Court ("on indictment") or conducted in the name of the Queen - referred to as "Regina" or, simply as "R" - e.g. R v Defendant(s). The prosecution is referred to as "the Crown" and the prosecution evidence is "Queen's Evidence."

The title of "Queen's Counsel" (QC) is also conferred by the Crown using Letters Patent. This appoints the person as "One of Her Majesty's Counsel learned in the law" and gives that lawyer a special status within the profession. QCs wear a silk gown and this explains why the process is referred to as "taking silk." A number of QCs Honoris Causa are also appointed - for example, to distinguished academic lawyers.

6 comments:

I understood Royal Assent was given on the advice of the Prime Minister, and can be withheld on his advice? (Hasn't this actually happened a couple of times? Wikipedia says not since Queen Anne, but I thought there were a couple this century... maybe not)

If that's right, effectively he has a veto, but one unlikely to be used in our constitution as the PM must have the confidence of parliament, and refusing a bill would destroy that, even if it were not for the fact that the executive proposes most bills in the first place.

In the UK, Royal Assent has not been refused since 1709 and there is now a very strong convention that it would not be refused. In his book "Constitutional and Administrative Law" (Palgrave Macmillan Law Masters, 8th ed. 2011), Professor John Alder wrote - ".. the Queen might conceivably refuse assent where the refusal is on the advice of the Prime Minister, for example in the unlikely event of a private member's bill being approved by Parliament against the wishes of the government. Here two conventions clash. It is submitted that the better view is that she must still give assent because the will of Parliament has a higher constitutional status than that of the executive."

I find it very difficult to see an actual situation where Royal Assent would actually be refused. Any attempt to do so would bring Her Majesty's role into serious question. Of course, Her Majesty is fully entitled to advise and warn the PM in relation to policy matters including, no doubt, bills before Parliament.

Twomey suggests that the Queen may have a residual discretion to refuse assent to a bill which violates fundamental constitutional principles - e.g. a Bill to abolish Parliament. However, Professor Alder suggests that this "seems unlikely."

I don't think there can be any doubt that the "rule" that the Queen does not refuse Royal assent is a convention - and even if a "very strong convention" (I agree, it is) it still is just a convention, not enforceable law. It seems to me beyond doubt that the Queen can in strict law refuse Royal assent to any bill - I don't see on what basis that power can be said to be limited to certain categories of bill - and that any bill refused Royal assent would be unenforceable in court.

I think it's important to keep this strict legal position distinct from what we think the Queen ought properly to do - mixing these two things up I think leads to a lot of confusion in this area. For instance I don't think it'd be proper for the Queen to refuse assent to just any old bread and butter bill, but it doesn't follow that you can cut away her constitutional powers and conclude that any type of bill is immune from "veto" as it were.

I'm not sure where John Alder's idea comes from that the PM's advice is relevant - that would seem to me to be the worst possible principle on which to exercise a Royal "veto". The sort of situation in which I could see Royal assent as coming into question is if we got a majority party in Parliament that started passing legislation cutting away severely at democracy - for instance by abolishing elections, or extending Parliaments to 25 years, or doing something else genuinely outrageous, especially if voters had not given them a clear mandate to do so.

If we were in such a situation then refusal of Royal assent would be the last and only "line of defence" for democracy, and in those circumstances I could imagine myself (if, say, I were the Queen's legal adviser) advising her that she could properly regard herself as not bound by the convention.

About Me

There are no aspects of modern life untouched by law. My main interests are criminal law, constitutional law, human rights, family law, European Union law and some aspects of international law.
In law, the word "obiter", refers to remarks which are "by the way." My own comments are also "by the way" - I write about events which happen to interest me. I do not seek to dictate or even to persuade: merely to comment and inform and this blog must never be used as a substitute for professional legal advice.
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